NEWANNESA Vs. SHAIKH MOTCAMMAD

JUDGEMENT

(1.) THIS appeal by special leave arises from the judgment of the Division Bench of the Calcutta High Court in appeal from original decree No. 652/61 and cross objections dated June 8, 1973. This Court while granting leave limited the appeal to the questions raised in ground Nos. II and VI dealing with inheritance of property belonging to Sabul, Liaquat and Mahujammusa. Therefore, untrammeled by the controversy which hinged in the trial Court and the High Court, we confined our consideration only to these two questions.

(2.) THIS appeal arises out of a partition suit. The genealogy table before us has not been disputed. It would show that Haji Ishan Ali died in 1955 leaving behind his widow Samudanusa, plaintiff No. 1 (P -1), who also died pending suit in 1966; his two daughters, plaintiff No. 2 (P -2) Bibi Mewannesa and Bibi Mahujammusa, defendant No.5 (D -5); and three sons Jabar Ali, Isabul Ali and Sabul Hassan. Jabar Ali left behind defendant No.1 (D -1), a son and defendant No.2 (D -2), a daughter. Isabul Ali left behind him defendant No.3 (D -3), a daughter. D -3 was married to D -l. Sabul Hassan pre -deceased Isabul Ali, leaving behind defendant No.4 (D -4), a son and Liaquat also a son, who too died before the death off sabul All The trial Court granted preliminary decree which was affirmed in appeal. The shares and extent are in controversy. The High Court found that the property purchased by Haji Ishan Ali in the name of his son Sabul Hassan belong to the latter alone. Since Sabul Hassan had pre -deceased Isabul Ali, the question arose whether Haji Ishan Ali was a sharer in the estate of Sabul Hassan.

(3.) IT is next contended that since D -1 died in March 1990, steps were not taken to bring the legal representatives on record until 27th January, 1995 despite notice given to the appellant by a letter dated November 14, 1990 and no proper explanation has been given for the inordinate delay. Therefore, the appeal as a whole should be dismissed as having been abated. We find no force in the contention. Since the third defendant is already on record representing all the heirs of the first defendant widow, the question of abatement does not arise. Even otherwise, we find that substitution should be allowed, since no injustice would be done in bringing the legal representatives on record. Thus, the objection is over -ruled. The application for substitution is allowed. The appeal is accordingly allowed. The matter is remitted to the Trial Court for determining the shares of all the contesting parties and for distribution of the estate in proportion to shares. This would be done according to the law declared hereinbefore. No costs.